Online Alexander Bickel symposium: It’s Alexander Bickel’s fault

Posted Thu, August 16th, 2012 10:17 am by Erwin Chemerinsky

Erwin Chemerinsky isDean and Distinguished Professor of Law at the University of California, Irvine, School of Law.

Modern constitutional theory began with Alexander Bickel’s The Least Dangerous Branch and its declaration that judicial review is a “deviant institution” in American democracy and that there is a “counter-majoritarian difficulty” in having an unelected judiciary with the power to invalidate the acts of popularly elected officials.

The focus of constitutional theory ever since has been on trying to solve the counter-majoritarian difficulty identified by Bickel and on reconciling judicial review with democracy. Unfortunately, this is a misguided and impossible quest, but one that has had profound consequences for constitutional law ever since.

To be clear, constitutional theory did not begin with Alexander Bickel. John Marshall in cases like Marbury v. Madison (1803)and McCulloch v. Maryland (1819) presented a constitutional theory. James Bradley Thayer articulated a theory of judicial review, and of judicial restraint, in the late nineteenth century. The Lochner(1905) era caused an intense debate about the appropriate role of the judiciary.It began with Bickel

But the focus on the counter-majoritarian difficulty, and of reconciling judicial review with democracy, really can be traced to The Least Dangerous Branch. It has been the obsession of constitutional theory ever since. In 1971, less than a decade after publication of Bickel’s book, Professor Robert Bork wrote an influential article defending an originalist approach to constitutional interpretation as a way of defining the proper role for an unelected judiciary in a democratic society. In 1980, John Hart Ely published Democracy and Distrust, one of the most important and influential works of constitutional theory, which expressly set out to develop an approach for reconciling judicial review with majoritarian democracy.

Countless books and articles have developed constitutional theories based on the need to justify judicial review in a democratic society. Even Judge J. Harvie Wilkinson’s new book, Cosmic Constitutional Theory (2012), which argues against developing a comprehensive constitutional theory, repeatedly argues for judicial restraint because judges are unelected and should be very hesitant to overturn the choices of elected government officials.

I reject the premise that Bickel and Ely and Wilkinson and so many others begin with: that democracy means majority rule and that there is a need to reconcile judicial review with majority rule. Ely, for example, expressly defines democracy as majority rule and defends his process-based approach to judicial review on the grounds that it is representation reinforcing.

Our anti-majoritarian Constitution

The United States, however, is a constitutional democracy; the system of government created by it cannot be equated with majority rule. The Constitution, itself, is profoundly anti-democratic. No one alive today participated in its drafting or ratification, and most of us did not have ancestors who did. Even if the majority loathes it, or a part of it, that majority cannot change it unless a super-majority (as reflected in an action of two-thirds of both houses of Congress and three-fourths of the states) agrees.

Nor is this coincidental or incidental to the American Constitution. It is meant to put the country’s most important commitments in a document that is very difficult to change. Indeed, so much of the Constitution was inherently anti-majoritarian. The President is chosen by the Electoral College, not the popular vote. The members of the Senate were chosen by state legislators. Supreme Court Justices and federal judges are chosen by the President and confirmed by the Senate. Of the four institutions of the federal government, only one, the House of Representatives, was elected by the people.

In other words, Bickel’s error was in not recognizing that it is the Constitution, rather than judicial review, that is the deviant institution in a system where democracy is defined as majority rule. By definition, any enforcement of the anti-majoritarian constitution will be anti-majoritarian.

In fact, if democracy is defined as majority rule, there never will be a way to reconcile judicial review with democracy. Whether the courts are following the framers’ intent or perfecting the process of government or adhering to traditions, it still is unelected judges invalidating choices by elected branches of government. Bickel directed constitutional theory on a futile quest.

Bickel provided a way to criticize any decision in which the judiciary invalidates the choices of elected government officials. Not surprisingly, conservatives attacked Roe v. Wade (1973) on this basis. But so could liberals criticize Citizens United v. Federal Election Commission (2010) on the same grounds. The reality, of course, is that both conservatives and liberals at times want the judicial to defer to elected government officials and at times to overrule them. They just disagree as to when.

Move on . . . beyond Bickel

After all these years and all of these words, it is time to get past Bickel and the counter-majoritarian difficulty. It is time to accept that the Constitution is anti-majoritarian and that, of course, judicial review to enforce it also will be counter-majoritarian and that is a good thing. The focus of constitutional theory must be on the meaning of the Constitution’s provisions. What should be the content of equal protection or cruel and unusual punishment or due process of law? These phrases must be given content and that is the proper role of constitutional theory. It must be a substantive discussion about the values of the Constitution and how they are to be applied.

The reality is that Justices and judges must make substantive value choices all the time in interpreting and applying the Constitution, and no theory can eliminate the need for this. The Fourth Amendment requires a determination of what is “reasonable.” Cases involving individual liberties and equal protection require courts to decide what is a “compelling” or an “important” or a “legitimate” government interest. Those who seek a constitutional theory that avoids judges and Justices making value choices are engaged in an impossible quest.

It is long overdue for constitutional discussions to focus on the underlying value choices. In District of Columbia v. Heller (2008), both Justice Antonin Scalia’s majority opinion and Justice John Paul Stevens’s dissent make persuasive arguments as to the original understanding of the Second Amendment. But in reality these were just covers for the fact that the conservative majority favors gun rights over gun control, while the liberal dissenters favor allowing gun control over gun rights. It would have been far preferable for each side to defend its view of the Second Amendment on the merits, rather than masking its position in a discussion of what people thought in 1791.

Because of the elegance of the prose and the power of the reasoning, The Least Dangerous Branch is a classic work about the American judiciary. Yet, a core aspect of the book – the claim that judicial review is a deviant institution – set constitutional theory on an undesirable path for a half century. It is time to finally move past it.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.